UK rioters: can employers dismiss them?

The UK may not win much at the 2012 Olympics but we clearly have some burgeoning talent ready for the World Civil Disorder Championships, scheduled to be held in a retail park in Catford at about the same time. But with a postman and a primary school assistant being two of the first individuals to appear before Magistrates, it seems that alienated teenagers and the unemployed were not the only contenders rioting on the streets over the last few nights. Many appear to have been from the ranks of the employed, though for how much longer remains to be seen.

One can only imagine the reaction of the Governors of the Stockwell Primary School in London when the face of one of their staff Alexis Bailey was splashed across the newspapers and television screens last night. He is one of the first to be sent for sentencing after admitting his part in the looting of an electrical store in Croydon on Monday night. He now not only faces the prospect of a jail sentence, but the odds on his losing his job must also be pretty high.

Even though Mr Bailey’s nocturnal activities took place outside the workplace and outside working hours, it is well established that employers can lawfully dismiss employees for misconduct outside working hours, provided it has some direct or indirect effect on their work. The Acas Code of Practice states that employers can and should consider the impact of a criminal charge or conviction on the employee’s suitability to do the job and on his relationship with his employer, colleagues and customers (or, in this case, parents). Public opinion is often premature and ill-informed but it can still fatally damage the employer if ignored. Mr Bailey works with children, is in a position of trust, has been pilloried publically in the papers and is supposed to be a role model, so all these boxes would appear roundly ticked.

Does the School have to wait until the verdict before taking any disciplinary action? No, not least because the conduct has been admitted. However, even where it is not, we would not generally recommend that an employer waits for the outcome of criminal proceedings before dismissing an employee (if that is its intention). Criminal proceedings can take forever, and employers have to do something with the employee in the meantime. In addition, remember that the fairness of a dismissal is not conditional on the employee being found guilty by the criminal court. The tests are different – the Crown must prove guilt beyond reasonable doubt, 99% certainty, if you like, while an employer needs only reasonable belief on a balance of probabilities, more like 51%. Anything falling between the two would support a fair dismissal despite being insufficient certainty to secure a conviction.

Where the employee has done the decent thing and confessed, whether or not in the face of incontrovertible evidence, it would be tempting to jump straight to dismissal. Tempting but unlawful — however stupid the behaviour, the employer should still take the time to go through a fair process and to be seen to establish (a piece of cake here) the necessary connection between it and the employment relationship.